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Daulat Ram Vs. Som Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 188 of 1975
Judge
Reported inAIR1981Delhi354; 19(1981)DLT1; 1981(2)DRJ14
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantDaulat Ram
RespondentSom Nath and ors.
Advocates: S.N. Chopra,; G.L. Seth,; S.L. Bhatia,;
Cases ReferredSandhura Singh v. Kher Singh
Excerpt:
.....still remains legally recoverable on the date of institution of eviction application out of the rent legally recoverable on the date of notice and demanded in the notice. order of the addl. controller directing the tenant to pay arrears of rent beyond the period of 3 years set aside. - - paragraphs 2 and 3 of the reply are as under :(2)as regards payment of rent, the same can be paid to your clients in cash against receipt or by 'good for payment' cheque or by draft as you think fit. further, there must be failure on the part of tenant to pay or tender the said legally recoverable rent within two months of the service of notice of demand. and iv) failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of..........recoverable and thereforee the appellants were not under any duty to pay or tender the time-barred rent demanded in the notice. his further contention is that the notice demanding arrears of rent in this case for more than three years must mean only notice demanding arrears of rent for three years i.e. rent legally recoverable. in other words, if a landlord demands amount more than legally recoverable amount of rent the demand must be restricted to the extent of legally recoverable amount. he thereforee contends that the demand of rent for more than three years was illegal and that the tenant was not required to pay anything more than three years' rent. (4) learned counsel for the respondents-landlords on the other hand contends that a landlord may demand arrears of rent including the.....
Judgment:

Sultan Singh, J.

(1) This is tenants' appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') challenging the orders of the Additional Controller and the Rent Control Tribunal passed under section 15(1) of the Act. The Additional Controller by order dated 27th March, 1974 directed the appellants to pay or deposit within one month arrears of rent at Rs. 35.00 p.m. with effect from 6th February, 1965, and continue to pay or deposit future monthly rent at the said rate by the 15th of each succeeding month. The Tribunal by order dated 21st October, 1975 confirmed the said order.

(2) The relevant facts to appreciate the arguments of the parties are: The respondents purchased the property bearing No, 5414 on Plot No. 61, G. B. Road, Delhi on 6th Februaiy, 1965. The appellants who were in possession of one door shop in the said property, by operation of law, became tenants under the respondents with effect from 6th February, 1965. On 25th April, 1971 the respondents sent a notice of demand to the appellants requiring them to pay arrears of rent at Rs. 35.00 per month with effect from 6th February, 1965. The

(3) Learned Counsel for the appellants contends that the order under Section 15(1) of the Act directing the appellants to deposit arrears of rent is illegal and is not in accordance with law. The rent from 6th February, 1965 was not legally recoverable on the date when the notice of demand dated 25th April, 1971 was issued. His contention is that on the date of notice rent for the period exceeding three years was barred by time, it was not legally recoverable and thereforee the appellants were not under any duty to pay or tender the time-barred rent demanded in the notice. His further contention is that the notice demanding arrears of rent in this case for more than three years must mean only notice demanding arrears of rent for three years i.e. rent legally recoverable. In other words, if a landlord demands amount more than legally recoverable amount of rent the demand must be restricted to the extent of legally recoverable amount. He thereforee contends that the demand of rent for more than three years was illegal and that the tenant was not required to pay anything more than three years' rent.

(4) Learned Counsel for the respondents-landlords on the other hand contends that a landlord may demand arrears of rent including the time- barred rent but the tenant is liable to pay or tender only the legally recoverable amount of rent within two months of the date on which the notice of demand was served. He also says that the tenant is liable to pay or tender legally recoverable rent including the rent falling due after notice up to the date of payment or tender, within two months of the service of notice to defeat the claim of eviction. He further says that the reply dated 8th May, 1971 sent by appellants' counsel is a promise made in writing signed by the appellants' authorised agent agreeing to pay the arrears of rent and that such agreement is a contract within the meaning of Section 25 Clause (3) of the Indian Contract Act, 1872. His further contention is that the agreement in writing under Section 25 Clause (3) of the Indian Contract Act came into existence on 8th May, 1971 and thereforee if the appellants pay or tender after that date they are liable to pay or tender rents for the period from 6th February, 1965. Under Section 15(1) of the Act, he further submits, the tenant is liable to be directed to deposit or pay all arrears of rent which were legally recoverable from him on the date of filing of eviction application together with rents for the subsequent period becoming due and payable by him within one month of the order under Section 15(1) of the Act, besides future monthly rent by the 15th of each succeeding month.

(5) The Learned Counsel for the appellants-tenants in reply says that a tenant is liable to pay or tender only legally recoverable rent as on the date of issue of notice within two months of service of notice of demand, He is not liable to pay or tender rent falling due up to the date of payment or tender. His further contention is that reply dated 8th May, 1971 is not an agreement to pay time-barred rent within the meaning of Section 25 Clause (3) of the Indian Contract Act. He also says that in any case, time-barred rent became legally recoverable only on 8th May, 1971 when the written reply was sent and as admittedly no notice of demand was issued after 8th May, 1971 the tenants were not liable to pay or tender such amount.

(6) The first question for decision is: whether the reply dated 8th May, 1971 sent on behalf of the appeallants-tenants in reply to the notice of demand dated 25th April, 1971 is an agreement in writing within the meaning of Section 25 Clause (3) of the Indian Contract Act. The Controller and the Tribunal both have held that the reply dated 8th May, 1971 is a contract to pay even the time-barred rents. In the notice dated 25th April, 1971 the respondents-landlords demanded rents for the period 6th February, 1965 at Rs. 35.00 per month. The appellants tenants in reply intimated that rents could be paid in cash, cheque or draft. Paragraphs 2 and 3 of the reply are as under :

'(2)As regards payment of rent, the same can be paid to your clients in cash against receipt or by 'good for payment' cheque or by draft as you think fit. (3) There is no objection if your clients care to receive arrears of rent from any or more or all the followings : Shri Ram Lal Shri Daulat Ram S/o L. Hakim Rai Shri Lachhman Singh S/o Sh. Gulab Rai Shri Daulat Ram S/o Gulab Rai Shri Uttam Chand Shri Tirath Singh. This payment and future payments of rent can, of course, be made and accepted without prejudice to either of the parties' rights, as regards tenancy or sub-tenancy.'

(7) This reply is not a promise to pay time-barred rents. It only informs the respondents to receive rent obviously legally recoverable rent. Amount of rent or the period for which the amount was agreed to be paid is not disclosed in this reply. The appellants, getting no response from the respondents, remitted Rs. l,260.00 by two money orders on 21st May, 1971 which were refused and subsequently deposited Rs. l,295.00 on 5th June, 1971 in the Court of the Additional Controller. The reply dated 8th May, 1971 and subsequent conduct of the appellants mean that they never agreed to pay the time-barred amount of rent.

(8) Learned Counsel for the respondents in support of his contention that the reply dated 8th May, 1971 is an agreement in writing within the meaning of clause 3 of Section 25 of the Indian Contract Act relies upon the various judgments. He refers to Appa Rao v. Suryaprakash Rao, 2nd 23 Madras 94, wherein the debtor has written the following letter to the creditor :

'INyour letter dated 24th March, 1898 you said that the kattubadi fromfaslil300tofasil 1307 was in arrears, and that the same should be sent through your peon. There are no collections now. I shall send by the end of the Vysakha month (April to May). Please to consider.'

27.8.98 (signed Kesavapalle Suryaprakasa Rao')

(9) From this letter it was held that the debtor had agreed to pay the time- barred rent. In this letter the debtor refers to rent fromfaslil300tofasli 1307. In David Sutherland Clark v. Rose Grimshaw, Air 1923 Lahore 481, the .debtor's letter to the creditor was in the following terms:

'SIR,-YOURletter, dated 5th February, received with copy of pro note. I accept it to be a true copy and hope to pay the money very soon.'

in this case copy of the pronote for Rs. 4,200.00 was sent to the debtor who accepted it to be true and promised to pay very soon. In Maiden Hotal v. willnott, Air 1935 Lahore 984, there was a debt of Rs. 244-1-0. After the period limitation the debtor wrote to the creditor expressing an acknowledge- ment of Rs. 224-1-0 together with a promise to pay the debt by monthly Installments till the amount was liquidated. In Re : Sandhura Singh v. Kher Singh, Air 1936 Lahore 1016, it was a case of pronote but the actual words used by the debter in his letter promising to pay are not available. In all these cases relied upon by the Learned Counsel for the respondents there was implied reference to the time-barred debt. In the case in hand the reply dated 8th May, 1971 does not infer even impliedly that the appellants ever agreed to pay rent for more than three years. After receipt of notice, it appears, the appellants tendered rent and when the respondents did not receive the rents they deposited Rs.l,295.00 in the court of the Additional Controller, Delhi on 5th June, 1971. I am thereforee of the view that the reply dated 8th May, 1971 sent on behalf of the appellants is not an agreement to pay time-barred rent within the meaning of clause (3) of Section of 25 the Indian Contract Act.

(10) Assuming that the reply dated 8th May, 1971 is an agreement to pay time-barred rent, it appears to me that the appellants-tenants were not liable to pay or tender the arrears of rent which was time-barred on the date of issue of demand notice and that they accordingly cannot be directed to deposit such rent under Section 15(1) of the Act. Section 14(l)(a) of the Act reads as under :

'SECTION 14(1) : Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant; Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely- (a) that the tenant has neither paid nor tendered the whole of the arrears, of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882.'

(11) The words 'the arrears of rent' in the expression 'a notice of demand for the arrears of rent' used in this clause mean 'arrears of rent' legally recoverable which are to be paid or tendered by the tenant within two months of the service of a notice of demand. If rent was not legally recoverable on the date of notice of demand, the tenant would not be liable to pay or tender such amount. He is required to pay or tender what was legally recoverable and for which a demand has been made by the landlord by means of a notice. Unless there is demand for legally recoverable rent there is no liability of the tenant to pay or tender to defeat eviction proceedings. In the absence of demand of legally recoverable rent, cause of action for eviction does not accrue to a landlord. Further, there must be failure on the part of tenant to pay or tender the said legally recoverable rent within two months of the service of notice of demand. The expression 'rent legally recoverable' means, 'rent' for the recovery of which a suit can be filed. In other words, it means rent recovery of which is not barred by the law of limitation. The cause of action for eviction on the ground of non-payment of rent thus consists of the following facts :

I)Relationship of landlord and tenant; ii) Existence of arrears of rent legally recoverable on the date of notice of demand; iii) Service of notice of demand in the manner provided in Section 106 of the Transfer of Property Act; and iv) Failure of the tenant to pay or tender the whole of the arrears of rent legally recoverable from him within two months of the date of service of notice.

(12) It is also contended on behalf of the appellants that the tenants under Section 14(l)(a) of the Act are not liable to pay or tender any rents falling due or accruing for the period subsequent to the date of notice till the date of payment or tender. This position is not accepted by the Learned Counsel for the respondents. I refrain from expressing any opinion on this question as this does not arise in the present appeal before me. This is a question which is sub-judice and is still to be decided during trial of the eviction case. The next question is what order ought to have been passed under Section 15(1) of the Act which reads as under :

'SECTION 15(1) In every proceeding for the recovery of possession of any premises on the ground specified in clause (a) of the proviso to sub-section (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.'

(13) Under this sub-section an order for deposit is passed after giving the parties an opportunity of being heard. Deposit order is to be passed for the arrears of rent legally recoverable as well as for the subsequent period i.e. up to the end of the month previous to that in which deposit is to be made. Besides these arrears, future rent also is required to be deposited. This sub-section also uses the words legally recoverable' rent. The words legally recoverable' rent as used here means the same thing as it means under Section 14(l)(a) of the Act. An order for deposit of rent is to be passed in pursuance of a notice of demand under section 14(l)(a) of the Act. If the amount of rent was not legally recoverable on the date of demand notice or the legally recoverable rent was not demanded by a notice, the same is also not legally recoverable' for purposes of Section 15(1) of the Act and no order requiring deposit of such amount can be passed. Thus the rent, which still remains legally recoverable on the date of institution of eviction application out of the rent legally recoverable on the date of notice and demanded in the notice, shall be the rent legally recoverable for the purposes of Section 15(1) of the Act. In the case in hand notice of demand is dated 25th April, 1971 and eviction application was filed on 12th July, 1971. On the date of institution of eviction application rent for the period 1st July, 1968 to 31st March, 1971 out of the rent demanded in notice dated 25th April, 1971 was the only legally recoverable rent and thereforee an order is to be passed for such rent. An order is also to be passed for deposit of rent for the period accruing subsequent to the date of notice. Inother words, rent from 1st April,1971 to October, 1980 i.e. up to the month previous to the month in which the tenants would pay or deposit rent in pursuance of such order under Section 15(1) of the Act is also to be passed. After taking into consideration the facts of the case in hand, I am of the considered view that the appellants-tenants cannot be ordered to pay or deposit arrears of rent which was time-barred on the date of the issue of notice of demand i.e. 25th April, 1971. Accordingly, I set aside the impugned orders of the Controller and the Tribunal and direct the appellants-tenants to pay or deposit in the court of the Additional Controller, where eviction application is pending, arrears of rent for the period from 1st July, 1968 to 31st October, 1980 @ Rs.35.00 P.M. within one month from today and continue to pay or deposit future monthly rent at the said rate by the 15th of the succeeding month till the decision of the eviction application. The amount of rent already paid or deposited in pursuance of the impugned order dated 27th March, 1971 may be adjusted Further, the rent, if any, deposited under Section 27 of the Act for the period from 1st July, 1968 onwards may also be adjusted. The amount of rent deposited under Section 27 of the Act or in pursuance of this order may be withdrawn by the landlords-respondents without prejudice to their pleas. No order as to costs.


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